Statutes Amendment (Interstate Advance Directives) Bill

This speech is in relation to the Statutes Amendment (Interstate Advance Directives) Bill. This bill is aiming to solve issues with powers of guardianship, medical powers of attorney and advanced directives. It is paired with the Powers of Attorney and Agency (Interstate Powers of Attorney) Amendment Bill 2012 another bill introduced earlier in the year.

The Hon. J.M.A. LENSINK (16:34): Obtained leave and introduced a bill for an act to amend the Consent to Medical Treatment and Palliative Care Act 1995 and the Guardianship and Administration Act 1993. Read a first time.

The Hon. J.M.A. LENSINK (16:35): I move:

That this bill be now read a second time.

This bill is a companion bill to one which I moved in June, namely, the Powers of Attorney and Agency (Interstate Powers of Attorney) Amendment Bill 2012. That bill is to enable the recognition in South Australia of enduring powers of attorney which are made interstate. I had that issue brought to my attention by people living in the South-East who had been affected by those issues. In the speech I outlined then, I did highlight that I would be looking at these other instruments as well. So that is what this bill does.

The Legal Affairs Commission website outlines a number of the instruments which people may need to avail themselves of; that is, if they are concerned about either their becoming unwell or their potential state of mind in the future, they are able to undertake to have these powers put in place. I will not talk about the enduring powers of attorney again, but I will quickly refer to the ones which are in this bill, that is, advance directives, which are made under the Consent to Medical Treatment and Palliative Care Act, medical powers of attorney under that same act, and the appointment of enduring guardians under the Guardianship and Administration Act.

On its page entitled 'When someone can't consent,' the Legal Affairs website outlines the appropriate procedure; that is, people aged 16 years and over can consent to their own medical treatment through the Consent to Medical Treatment and Palliative Care Act. However, the exception is when a person is legally incapacitated, where a person has mental incapacity and is unable to consent to treatment, under the Guardianship and Administration Act 1993 an appointed medical agent may consent to treatment.

If there is no agent, or the agent is unavailable or unwilling to act, an appointed guardian can consent on the person's behalf. A guardian may be appointed by an enduring power of guardianship or by the Guardianship Board. If no guardian has been appointed, a relative can consent. These are clearly issues where people may have reduced capacity or concerns about reduced capacity.

I do note that a briefing has been organised by the Minister for Health and Ageing for tomorrow. I think that the provisions which I foreshadowed in June may be duplicated by the Minister for Health and Ageing. I am pleased to see that he has seen sense and taken up this issue. I do get tired of raising issues in this place, which the government then says that it is not going to accept. However, if the government is to accept that this is an issue that needs to be addressed, that is a good thing.

In relation to the initial draft that I sent to the Law Society in August, the Law Society has made a couple of suggestions, which have been incorporated in the final bill, those being that the Law Society is concerned that limitations may not have been foreseen when the documents were signed and that in their recognition here those may have been expanded. The Law Society is clearly concerned that the matters which were intended are limited to those when they are recognised here.

The clauses, which I think are pretty self-explanatory within the bill, really outline the limitations which are to be placed on the instruments when they are recognised here. Clearly we would not want to have any unintended consequences of expanding those if that was not the intention by the people when they signed those documents interstate.

I received correspondence from some people in Mildura, which is not an area that I had necessarily assumed would have been affected by this, but it did prompt me to think that Broken Hill is probably an area as well, similar to the South-East where a lot of business is conducted across the border, including health matters. One gentleman has written to me from Mildura and he has given me permission to read his letter into the record just to outline his case. He says:

We are aware that you have before the South Australian parliament a bill for an act to amend the Powers of Attorney and Ageing Act...so as to accept powers of attorney of other states and territories.

...the following is a rundown of my own personal experience. In 2005 I suffered a mild heart attack and was admitted to the Mildura Base Hospital. The medical staff determined that I was to undergo an angiogram which was not available in Mildura but would need to be performed in a capital city hospital. As far as I can remember I had no say in which capital city the procedure was to take place and I was flown by the Royal Flying Doctor Service to Adelaide and admitted to Ashford Hospital.

While there was no need to present my Victorian Enduring Power of Attorney (Medical) my understanding is that under current South Australian legislation my document if presented would not have been recognised.

While undergoing medical treatment and with my next of kin in Mildura (or driving to Adelaide by car to be with me) what chance did I have to obtain, have drawn up and execute the South Australian Power of Guardianship which I believe is the equivalent of the Victorian Enduring Power of Attorney (Medical)?

I have recently become aware of a critically ill Mildura resident's Enduring Power of Attorney...not being recognised by staff of an Adelaide...hospital. Ms Lensink, Sunraysia residents on both sides of the Murray River, North West Victoria and South West New South Wales, are very focused on Adelaide services for many reasons but probably none more than for medical reasons.

It is completely unreasonable that Victorian Enduring Powers of Attorney...and its New South Wales equivalent are not recognised nor validated in South Australia.